Although most Supreme Court watchers are focused on the two gay marriage cases to be argued before the Court on Tuesday and Wednesday of this week (NB: I signed the brief submitted by former Republican officials supporting same-sex marriage in the Hollingsworth case), for Lawfare readers this may be the week that the Supreme Court finally issues a decision in the landmark Alien Tort Statute case, Kiobel v. Royal Dutch Petroleum.
Lawfare readers will recall that this case was initially argued on the issue of corporate liability (whether corporations may violate international law) in February 2012. But after I (together with Paul Clement) and Jack Goldsmith submitted amicus briefs in the first briefing round arguing that the real issue is whether the ATS applies at all to torts allegedly committed in other countries, the Supreme Court ordered the case rebriefed and reargued on the issue of extraterritoriality. (I also wrote this op-ed in the Washington Post explaining the diplomatic friction caused by ATS litigation, contrary to the original purpose of the statute.) Kiobel was reargued on October 1, the first argument of the first day of this Court term. The Court has already issued decisions in most of the other cases argued in October.
Whether or not a decision is issued this week, most Kiobel watchers believe that the Court will rule in favor of Shell. But on what basis? What theory will persuade a majority or plurality of justices? Here are a few possibilities:
1. Extraterritoriality. A majority decides that the ATS does not apply extraterritorially to torts in other countries at all. This would be the cleanest decision (and it is the argument Paul Clement and I made in our briefs). But it would require a majority to overrule Filartiga, in which the Second Circuit held that a Paraguayan official could be sued under the ATS for the torture and murder of a Paraguayan inside Paraguay. The Court appeared to cite Filartiga with approval in its 2004 Sosa decision. On the other hand, the Torture Victim Protection Act, which was enacted after Filartiga was decided, would now give a cause of action to the Filartiga family.
2. Corporate Liability. A majority decides that the ATS does not allow suits against corporations because corporations may not be held liable for violations of international law. This was the basis for the Second Circuit's decision in Kiobel. However, most justices seemed less interested in this issue when Kiobel was first argued. The Obama Administration argued in the first briefing round that there should not be a categorical rule against corporate liability for violations of international law. And some pundits have pointed out that the Court would make itself an easy target if it were to conclude that corporations have rights (see, e.g., Citizens United) but not legal responsibilities.
3. No F-Cubed Cases. Many of the justices seemed highly skeptical about allowing suits in cases by foreign plaintiffs against foreign corporations for aiding and abetting acts of foreign governments in foreign countries (these are really F-to-the-fourth cases). Justice Alito asked: "What business does a case [like this] have in the courts of the United States? ... There's no connection to the United States whatsoever." Certainly such cases seem to violate traditional international law principles of jurisdiction. And the Obama Administration, in the second round of briefing regarding extraterritoriality, sided with Shell on this point, to the disappointment of many human rights groups. But it would seem to be a very narrow point on which to decide this case and would essentially require the Court to engage in quasi-legislative line-drawing. And it would ensure that the Court would have to decide ATS cases involving U.S. companies in the next few years.
4. Exhaustion of Local Remedies. Justice Sotomayor seemed attracted in oral argument to the idea that the plaintiffs had not exhausted their potential remedies in Nigeria (where the alleged torts occured) or in Britain or the Netherlands (Shell is an Anglo-Dutch company) before suing in the United States. But while this might dispose of the Kiobel case (for the time being), it would provide little guidance to lower courts about the application of the ATS in other cases. And indeeed, Kiobel itself might bounce back in a few years.
It seems likely that all of these issues will be addressed in some way in the Supreme Court's decision or the opinions of individual justices. (Indeed, many court watchers believe that the delay may be explained by the likelihood that most justices will write or join separate opinions, drafts of which may have been circulating over the last several months.) The question will be what dominant ATS principle or principles will emerge in the Court's decision and whether those principles will provide sufficiently clear guidance to stem the flood of ATS litigation since 2004, despite the Court's admonishment in Sosa that it was leaving the door to future ATS suits "ajar, subject to vigilant doordkeeping."